# City of Portland v. Marshall

> Court of Appeals of Oregon · November 19, 1986 · 82 Or. App. 497

URL: https://www.frixlaw.com/law-library/cases/9790507

## Case

- **Full name:** CITY OF PORTLAND, Respondent, v. ROBERT VAN MARSHALL, Appellant
- **Court:** Court of Appeals of Oregon
- **Decided:** November 19, 1986
- **Citations:** 82 Or. App. 497; 728 P.2d 903; 1986 Ore. App. LEXIS 4123
- **Precedential status:** Published
- **Opinion:** Dissent by Buttler
- **Judges:** Buttler, Warren, Rossman
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

BUTTLER, P. J.,
dissenting.
The state has provided in ORS 166.28CK1) 1 the circumstances in which a firearm may be declared to be a nuisance and be subject to confiscation. That statute applies to “any city, county, town or other municipal corporation” and appears to preempt the field. Because the city’s ordinance is broader than the state statute, it is not compatible with it and must fall. Or Const, Art XI, § 2; 2 City of Portland v. Dollarhide, 300 Or 490 , 714 P2d 220 (1986).
Neither the statute nor the ordinance is intended to provide a penalty for the violation of a specific statutory offense, nor is either a sentencing statute. Defendant was fined $100 for violation of the ordinance under which he was convicted. The question is not whether a city may proscribe and punish conduct not proscribed by the state; it may. City of Portland v. Dollarhide, supra. Rather, the question is whether *502 city may declare a firearm to be a nuisance in circumstances that would not constitute a nuisance under state law; it may not.
Because I believe that the ordinance, under the circumstances of this case, is incompatible with the state statute, I dissent.
ORS 166.280(1) provides:
“The unlawful concealed carrying upon the person or within the vehicle of the carrier of any machine gun, pistol, revolver or other firearm capable of being concealed upon the person, or any firearm used during the commission of any felony or misdemeanor is a nuisance. Any such weapons taken from the person or vehicle of any person unlawfully carrying the same are nuisances, and shall be surrendered to the magistrate before whom the person is taken, except that in any city, county, town or other municipal corporation the weapons shall be surrendered to the head of the police force or police department.”
Or Const, Art XI, § 2, provides in part:
“The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * *.” (Emphasis supplied.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9790507. Public record. Not legal advice.